Citation Nr: 1007151	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  06-31 652A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a disability rating in excess of 10 percent 
for service-connected scar, residual of appendectomy.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. Barone, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1984 to 
December 1992.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from an October 2005 rating decision by a Regional 
Office (RO) of the Department of Veterans Affairs (VA).  A 
notice of disagreement was received in March 2006, a 
statement of the case was issued in June 2006, and a 
substantive appeal was received in October 2006.

The Board notes that the Veteran requested a Board hearing 
and has been scheduled and rescheduled (at his request) for 
such a hearing.  Most recently, the Veteran was scheduled for 
a Travel Board hearing in January 2010 and was notified of 
this in November 2009.  However, the Veteran failed to report 
for the hearing and has neither indicated good cause nor 
requested another rescheduling of the hearing.  Therefore, 
the Board shall proceed with a final decision based upon the 
available evidence of record.  See 38 C.F.R. § 20.704(d).


FINDING OF FACT

The Veteran's service-connected scar, residual of 
appendectomy, is manifested by a depressed scar (not on the 
head, face, or neck) that is no longer than 18 centimeters 
and is no wider than 4 centimeters in its widest portion, 
without limitation of function.


CONCLUSION OF LAW

The criteria for assignment of a rating in excess of 10 
percent for the Veteran's service-connected scar, residual of 
appendectomy, have not been met.  38 U.S.C.A. §§ 1155, 5107 
(West 2002); 38 C.F.R. Part 4, including § 4.7, Diagnostic 
Codes 7801, 7802, 7803, 7804, and 7805 (2009).




REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Board acknowledges the Veterans Claims Assistance Act of 
2000 (VCAA).  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 
2002).  This legislation provides, among other things, for 
notice and assistance to claimants under certain 
circumstances.  VA has issued final rules to amend 
adjudication regulations to implement the provisions of VCAA.  
See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a).  The 
intended effect of the regulations is to establish clear 
guidelines consistent with the intent of Congress regarding 
the timing and the scope of assistance VA will provide to a 
claimant who files a substantially complete application for 
VA benefits, or who attempts to reopen a previously denied 
claim.

Duty to Notify

After reviewing the claims folder, the Board finds that the 
claimant has been notified of the applicable laws and 
regulations which set forth the necessary criteria for the 
benefits currently sought.  The claimant was informed of the 
information and evidence necessary to warrant entitlement to 
the benefits sought in letters dated in February 2005 and 
July 2005.  Moreover, in these letters, the appellant was 
advised of the types of evidence VA would assist him in 
obtaining as well as his own responsibilities with regard to 
identifying relevant evidence.  See Quartuccio v. Principi, 
16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 
370 (2002).  The Board notes that these letters were sent to 
the appellant prior to the most recent RO-level 
readjudication of the issue on appeal, as evidenced by the 
November 2008 supplemental statement of the case.  The VCAA 
notice was therefore effectively timely.  See Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  The Board finds that all 
notices required by VCAA and implementing regulations were 
furnished to the appellant and that no useful purpose would 
be served by delaying appellate review to send out additional 
VCAA notice letters.

During the pendency of this appeal, on March 3, 2006, the 
United States Court of Appeals for Veterans Claims (Court) 
issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 
held that the VCAA notice requirements of 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service connection claim.  Those five elements include: 
1) veteran status; 2) existence of a disability; 3) a 
connection between the veteran's service and the disability; 
4) degree of disability; and 5) effective date of the 
disability.  The Court held that upon receipt of an 
application for a service-connection claim, 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating or is necessary to substantiate the elements 
of the claim as reasonably contemplated by the application.  
Id. at 486.  Additionally, this notice must include 
notification that a disability rating and an effective date 
for the award of benefits will be assigned if the benefits 
are awarded.  Id. at 488.

In this case, an effectively timely letter sent in April 2006 
provided the notice contemplated by Dingess.  The appellant 
was provided with notice of the types of evidence necessary 
to establish a disability rating and an effective date for 
any rating that may be granted, and this letter explained how 
VA determines disability ratings and effective dates.  The 
Board notes that this letter was sent to the appellant prior 
to the most recent RO-level readjudication of the issues on 
appeal as evidenced by the November 2008 supplemental 
statement of the case.  The notice was therefore effectively 
timely.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Veteran has received all essential notice, has had a 
meaningful opportunity to participate in the development of 
his claims, and is not prejudiced by any technical notice 
deficiency along the way.  See Conway v. Principi, 353 F.3d 
1369 (Fed. Cir. 2004).  In any event, the Veteran has not 
demonstrated any prejudice with regard to the content of the 
notice.  The U.S. Court of Appeals for the Federal Circuit 
previously held that any error in VCAA notice should be 
presumed prejudicial, and that VA must bear the burden of 
proving that such an error did not cause harm.  Sanders v. 
Nicholson, 487 F.3d 881 (2007).  However, the U.S. Supreme 
Court has recently reversed that decision, finding it 
unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides 
that, in conducting review of decision of the Board, a court 
shall take due account of rule of prejudicial error.  The 
Supreme Court in essence held that -except for cases in which 
VA has failed to meet the first requirement of 38 C.F.R. 
§ 3.159(b) by not informing the claimant of the information 
and evidence necessary to substantiate the claim- the burden 
of proving harmful error must rest with the party raising the 
issue; the Federal Circuit's presumption of prejudicial error 
imposed an unreasonable evidentiary burden upon VA and 
encouraged abuse of the judicial process, and determinations 
on the issue of harmless error should be made on a case-by-
case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Duty to Assist

Furthermore, the Board finds that there has been substantial 
compliance with the assistance provisions set forth in the 
law and regulations.  The record as it stands includes 
sufficient competent evidence.  All available pertinent 
records, in-service and VA reports, have been obtained.  The 
Veteran has been afforded multiple VA examinations to 
evaluate his disability in this appeal; all pertinent VA 
examination reports are of record, including those dated in 
August 2005, October 2007, and October 2008.  The Board notes 
that the VA examination reports of record contain 
sufficiently specific clinical findings and informed 
discussion of the pertinent features of the disability on 
appeal to provide probative medical evidence adequately 
addressing the issue decided below.  The Board finds that the 
record as it stands includes adequate competent evidence to 
allow the Board to decide the case and no further action is 
necessary.  See generally 38 C.F.R. § 3.159(c)(4).  No 
additional pertinent evidence has been identified by the 
claimant as relevant to this appeal.  Under these 
circumstances, no further action is necessary to assist the 
claimant with this appeal.

Analysis

The Veteran seeks assignment of a disability rating in excess 
of 10 percent for his post-surgical appendectomy scar.  The 
Veteran essentially contends that the scar is more severely 
disabling than the 10 percent disability rating reflects.  
Primarily, the Veteran's correspondence has contended that 
proper measurement of the scar should reveal that it involves 
sufficient area to warrant an increased rating.  The Veteran 
has also generally contended that tenderness, irritation, and 
itching interferes in his functioning.  As discussed in 
detail below, the RO has scheduled the Veteran for three VA 
examinations to obtain full clinical reports of the scar's 
features, to include detailed descriptions of the dimensions 
of the area of involvement, in accordance with the Veteran's 
requests to have the scar re-measured on multiple occasions.

Disability evaluations are determined by the application of 
the Schedule For Rating Disabilities, which assigns ratings 
based on the average impairment of earning capacity resulting 
from a service-connected disability.  38 U.S.C.A. § 1155; 38 
C.F.R. Part 4.  Where there is a question as to which of two 
evaluations shall be applied, the higher evaluation will be 
assigned if the disability picture more nearly approximates 
the criteria required for that rating.  Otherwise, the lower 
rating will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes 
in condition, it is necessary to consider the complete 
medical history of the veteran's condition.  Schafrath v. 
Derwinski, 1 Vet. App. 589, 594 (1991).  Where the appeal 
arises from the original assignment of a disability 
evaluation following an award of service connection, the 
severity of the disability at issue is to be considered 
during the entire period from the initial assignment of the 
disability rating to the present time.  See Fenderson v. 
West, 12 Vet. App. 119 (1999).  However, where an increase in 
the level of a service-connected disability is at issue, the 
primary concern is the present level of disability.  
Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the 
Board acknowledges that a claimant may experience multiple 
distinct degrees of disability that might result in different 
levels of compensation from the time the increased rating 
claim was filed until a final decision is made.  Hart v. 
Mansfield, 21 Vet. App. 505 (2007).  The analysis in the 
following decision is undertaken with consideration of the 
possibility that different ratings may be warranted for 
different time periods.

The Board also notes, to the extent that functional 
impairment and muscular impairment may potentially be 
associated with post-surgical scarring, that when evaluating 
disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 
allows for consideration of functional loss due to pain and 
weakness causing additional disability beyond that reflected 
on range of motion measurements.  DeLuca v. Brown, 8 Vet. 
App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that 
consideration also be given to weakened movement, excess 
fatigability and incoordination.

The Veteran's service-connected scar residual of appendectomy 
has been rated by the RO under the provisions of Diagnostic 
Code 7804.  The existence of a superficial scar (not 
associated with underlying soft tissue damage) that is 
painful on examination warrants a 10 percent rating, which is 
the maximum.  38 C.F.R. § 4.118, Diagnostic Code 7804.

Additionally, Diagnostic Code 7801 pertains to all scars 
(other than on the head, face, or neck) which are deep or 
cause limited motion.  Pursuant to Diagnostic Code 7801, such 
a scar or scars warrants a 10 percent disability evaluation 
when it involves an area or areas exceeding 6 square inches 
(39 square centimeters).  A 20 percent disability evaluation 
is warranted for when it involves an area or areas exceeding 
12 square inches (77 square centimeters).  A 30 percent 
disability evaluation is warranted when it involves an area 
or areas exceeding 72 square inches (465 square centimeters).  
A 40 percent evaluation is warranted when it involves an area 
or areas exceeding 144 square inches (929 square 
centimeters).

A 10 percent rating is warranted when the veteran has a scar 
(not on the head, face, or neck) that is superficial and does 
not cause limitation of motion if the scar has an area 
exceeding 144 square inches (929 sq. cm.).  38 C.F.R. 
§ 4.118, Diagnostic Code 7802.

The existence of a superficial, unstable scar (one where 
there is frequent loss of covering of skin over the scar) 
warrants a 10 percent rating, which is the maximum. 38 C.F.R. 
§ 4.118, Diagnostic Code 7803.

Pursuant to Diagnostic Code 7805, scars may otherwise be 
rated based on the limitation of function of the affected 
part.

An August 2005 VA examination report is of record and 
presents substantial information and clinical findings 
pertinent to this appeal.  The report shows that the Veteran 
described experiencing numbness, paresthesias, and irritation 
where his belt and his waistline cross the scar; this caused 
the Veteran to move his belt frequently and wear looser 
pants.  The examiner indicated that he gave the Veteran 
several opportunities to report any limitations.  The Veteran 
first stated that regarding his business affairs and his 
occupation there is no limitation from the scar.  The Veteran 
reported symptoms when he runs, engages in sports, or does 
sit-up exercises; the symptoms were described to be itching 
and irritation.

Physical examination during the August 2005 VA examination 
revealed a scar which was 16 centimeters long extending from 
the level of the umbilicus just to the right of it down to 
the pubis.  The scar was 3 millimeters wide in the upper half 
and 1.2 centimeters wide in the lower half.  The examiner 
noted that there was no evidence of incisional hernia, 
ventral hernia, or weakness.  The examiner also noted that 
there was mild tenderness to the lower portion of the scar.  
The examiner found no adhesions, found normal texture, and 
found no evidence of ulceration or breakdown of skin.  The 
examiner did find depression of the scar with possibly some 
underlying tissue loss in the subcutaneous fat area.  No 
inflammation or edema was found.  The examiner commented that 
minimal scarring could be superficial keloids, however actual 
keloids were not seen.  The color of the scar was somewhat 
lighter than that of the adjoining skin, but the examiner was 
of the opinion that there was no disfigurement.  The examiner 
found no limitation of function by the scar.

The report notes that the Veteran did not describe pain, 
weakness, fatigue, flare-ups, or incoordination.  The 
Veteran's symptom complaints were numbness, paresthesias, 
itching, and irritation.  Photographs were taken and are 
included in the claims-file for review; they appear to be 
consistent with the clinical discussion of the scar provided 
by the examination report.

An October 2007 VA examination report is also of record and 
presents additional information and clinical findings 
pertinent to this appeal.  The Veteran reported slight 
tenderness with pressure of the belt buckle and an itching 
stinging sensation at the bottom end of the scar.  The 
Veteran described this as a mild discomfort, but was more 
concerned because of retraction or depression and the width 
of the scar.  The report notes that the Veteran denied any 
disturbance of bowel or bladder function.

Physical examination in October 2007 revealed a large 
vertical lower abdominal scar extending from the suprapubic 
region 18 centimeters to just above the umbilicus.  At the 
widest point, the lower 8 centimeters of the scar was 4 
centimeters wide.  The center of the scar was retracted 
three-quarters of an inch deep for a length of 8 by 1 
centimeter; there was induration in the lower half of the 
scar extending 3 centimeters by 1.5 centimeters.  There was 
no tenderness observed and the scar was noted to be well 
healed.  The texture was smooth and the color slightly paler 
than surrounding skin.  The scar was retracted and fixed to 
subcutaneous tissues; there was no loss of underlying tissue, 
and no sign of inflammation or breakdown.  The examiner noted 
that there had been no change in the appearance of the scar 
since the photographs taken in connection with the previous 
August 2005 VA examination report.  The examiner 
characterized the symptoms as 'minor' discomfort and 
deformity.

An October 2008 VA examination report is also of record and 
provides another presentation of information and clinical 
findings pertinent to this appeal.  The Veteran reported 
symptoms of occasional numbness and itching sensation in 
addition to discomfort when his belt rubs against the scar.  
The Veteran reported that he had been working in real-estate 
development with no time loss from work.  The Veteran denied 
any bowel complaints, diarrhea, or constipation.  The Veteran 
did not indicate any skin breakdown from the scar site.

Physical examination in October 2008 revealed a scar which 
starts curving all around from the supraumbilical region 
around the infraumbilical and then goes all the way to the 
suprapubic region.  In length, the scar measured 18 
centimeters.  The lower 8 centimeters of the scar were 4 
centimeters wide and the upper 10 centimeters of the scar 
were approximately 4 millimeters wide.  There was no 
incisional hernia noted on palpation.  The texture was 
smooth, the color was hyperpigmented compared to the 
surrounding skin.  The scar was retracted.  There were no 
signs of inflammation or skin breakdown.  The scar was 
characterized as deep.  The center of the scar was retracted 
three quarters of an inch deep.  There was no pain on scar 
examination.  The scar was stable, and there were no 
ulcerations seen and no keloid edema or inflammation seen.  
There was no area of inflexibility of the skin in the area of 
the scar.  The examiner found no limitation of motion or 
limitation of function caused by the scar.  The examiner's 
final impression characterized the scar as well healed at 
present and occasionally causing numbness and discomfort.

In summary, the various VA examination reports measure the 
length of the scar as 16 centimeters (August 2005) or 18 
centimeters (October 2007 and October 2008).  The widest 
portion of the scar was measured as 1.2 centimeters (August 
2005), 4 centimeters (October 2007 and October 2008).  The 
Board notes that the scar is clearly shown to not be 4 
centimeters wide throughout, but only in its widest portion.  
Using 18 centimeters by 4 centimeters as the basis for 
calculating a total area of 72 square centimeters is an 
overestimate of the actual total area of the scar.  However, 
even this overestimate of 72 square centimeters fails to meet 
the criteria for a higher rating under Diagnostic Code 7801, 
as this measurement is less than 77 square centimeters.  
Therefore, even contemplating the fact that the Veteran's 
scar may be characterized as a deep scar, no rating in excess 
of 10 percent is warranted under Diagnostic Code 7801.

The Board notes that a January 2005 VA outpatient treatment 
record refers to the scar as having dimensions of 8 inches by 
1.5 inches.  This report was not prepared for the purpose of 
precisely measuring the scar's dimensions; in contrast to the 
several VA examination reports, it does not present a 
detailed discussion focused upon the dimensions and shape of 
the scar.  The Board finds that such measurements of the scar 
contained in treatment records are significantly less 
probative than the more precise and detailed measurements 
presented in the several VA examination reports prepared with 
attention focused upon the purpose of evaluating those 
dimensions.  In any event, the Board observes that even 
assuming a scar that was simply 8 inches by 1.5 inches 
(ignoring that the evidence demonstrates the shape of the 
Veteran's scar is not as wide throughout its length), the 
resulting area of 12 square inches would still not be in 
excess of 12 square inches and would still not meet that 
criterion for an increased rating.

The Board finds no rating in excess of 10 percent is 
warranted under Diagnostic Code 7801.  The Board notes that 
no rating in excess of 10 percent is available under the 
provisions of Diagnostic Codes 7802, 7803, or 7804; a 10 
percent rating is the maximum rating under those Codes.  The 
Board also notes that no limitation of function of the 
affected body part is shown in any of the evidence of record 
to warrant assignment of a disability rating in excess of 10 
percent.  The Board finds no basis for assignment of an 
increased disability rating in this case under any applicable 
Diagnostic Code.

Conclusion and Extraschedular Consideration

In this decision, the Board has found that the VA examination 
reports of record are highly probative evidence with regard 
to evaluating the severity of the Veteran's scar disability 
on appeal in this case.  The reports specifically document 
and address the Veteran's symptom complaints, document the 
pertinent specialized clinical findings, and present 
competent medical examiners' assessments of the disability 
informed by direct interview and inspection of the Veteran 
together with consideration of the pertinent history.

The Board has reviewed the entirety of the evidence of 
record, including the Veteran's testimony and additional 
treatment records.  The Board finds that none of the evidence 
of record probatively contradicts the findings discussed 
above, nor does any of the evidence of record otherwise 
probatively show that the criteria for any increased rating 
are met in this case.

The Board acknowledges that the Veteran, in advancing this 
appeal, believes that the disability on appeal has been more 
severely disabling than the assigned disability rating 
reflects.  Medical evidence is generally required to 
probatively address questions requiring medical expertise; 
lay assertions do not constitute competent medical evidence 
for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 
494 (1992).  However, lay assertions may serve to support a 
claim by supporting the occurrence of lay-observable events 
or the presence of symptoms of disability subject to lay 
observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); 
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see 
Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) 
(addressing lay evidence as potentially competent to support 
presence of disability even where not corroborated by 
contemporaneous medical evidence).

The Board has carefully considered the Veteran's contentions 
and testimony.  Lay testimony is competent to describe such 
complaints as the itching, irritation, and appearance of the 
scar.  In this case, however, the competent medical evidence 
offering detailed specific findings and specialized 
determinations pertinent to the rating criteria are the most 
probative evidence with regard to evaluating the pertinent 
symptoms for the disability on appeal.  The Board accepts the 
Veteran's testimony regarding his scar, but relies upon the 
competent medical evidence with regard to the specialized 
quantification and evaluation of the extent of the area of 
the scar and its clinical features.  The lay testimony has 
been considered together with the probative medical evidence 
clinically evaluating the severity of the pertinent 
disability symptoms.  The preponderance of the most probative 
evidence does not support assignment of any increased rating 
in this case.

The Board observes that in some of the Veteran's statements 
he contends that the measurements presented in the medical 
reports of record actually meet the criteria for an increased 
rating.  The Board accepts that a lay person is competent to 
interpret a reported length and width of a scar and apply 
multiplication to calculate a surface area.  However, the 
Board has performed such a calculation in this case using the 
instances of measurements most favorable to the Veteran's 
claim among those presented in the most probative evidence.  
In so doing, multiplication of the most favorable length by 
the most favorable width results in significantly 
overestimating the surface area by using the width of the 
widest point of the scar as though it were the width 
throughout the scar.  However, even that overestimation fails 
to meet the applicable threshold for assignment of an 
increased rating.  In any event, the Board finds that 
absolutely none of the probative competent clinical 
measurements of the scar in this case show an area 
sufficiently large to warrant an increased disability rating, 
as discussed above.

To the extent that the Veteran is otherwise competent to 
testify that his scar is larger than the medical reports 
indicate, the Board finds that three highly probative VA 
examinations of the scar with detailed reported measurements 
supplemented by photographic evidence are more probative than 
the Veteran's testimony in this regard.

To the extent that the Veteran's statements, including a 
January 2007 statement, suggest that a VA examiner verbally 
endorsed the Veteran's belief that his scar is large enough 
to warrant an increased disability rating, the Board finds 
that such a presentation of evidence has no probative weight 
in this case.  The Board notes that there is no 
contemporaneous documentation of any such medical opinion 
despite the fact that all of the VA examinations are 
documented by complete reports in the claims file.  The Board 
cannot rely upon the Veteran's account of a doctor's opinion 
without corroborating consistent medical statements from the 
doctor.  The Board notes that the U.S. Court of Appeals for 
Veterans Claims has held that a lay person's statement about 
what a physician told him, i.e., 'hearsay medical evidence,' 
cannot constitute the medical evidence, as "the connection 
between what a physician said and the layman's account of 
what he purportedly said, filtered as it was through a 
layman's sensibilities, is simply too attenuated and 
inherently unreliable to constitute 'medical' evidence."  
See Robinette v. Brown, 8 Vet. App. 69 (1995).

Finally, in making these determinations, the Board has 
considered the provisions of 38 U.S.C.A. § 5107(b), but there 
is not such a state of approximate balance of the positive 
evidence with the negative evidence with regard to any 
adverse determination in this decision.  The preponderance of 
the evidence is against finding entitlement to any increased 
rating in this appeal.  To that extent, as the preponderance 
of the evidence is against the claim, the benefit-of-the-
doubt doctrine does not apply and the claim must be denied.  
See Gilbert v. Derwinski, 1 Vet. App 49 (1990).

The Board also recognizes that the Veteran and the record 
refer to the impact of the service-connected disability on 
the Veteran's functioning, which can be understood to include 
work functioning.  In general, the schedular disability 
evaluations are determined by the application of a schedule 
of ratings which is based on average impairment of earning 
capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  The 
application of such schedular criteria was discussed in great 
detail above.  To accord justice in an exceptional case where 
the schedular standards are found to be inadequate, the RO is 
authorized to refer the case to the Chief Benefits Director 
or the Director, Compensation and Pension Service for 
assignment of an extraschedular evaluation commensurate with 
the average earning capacity impairment.  38 C.F.R. 
§ 3.321(b)(1).

The criterion for such an award is a finding that the case 
presents an exceptional or unusual disability picture with 
such related factors as marked interference with employment 
or frequent periods of hospitalization as to render 
impractical application of regular schedular standards.  Id.  
The Court has held that the Board is precluded by regulation 
from assigning an extraschedular rating under 38 C.F.R. 
§ 3.321(b)(1) in the first instance; however, the Board is 
not precluded from raising this question, and in fact is 
obligated to liberally read all documents and oral testimony 
of record and identify all potential theories of entitlement 
to a benefit under the law and regulations.  Floyd v. Brown, 
9 Vet. App. 88 (1996).  The Court further held that the Board 
must address referral under 38 C.F.R. §3.321(b)(1) only where 
circumstances are presented which the Director of VA's 
Compensation and Pension Service might consider exceptional 
or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court 
clarified the analytical steps necessary to determine whether 
referral for extraschedular consideration is warranted.  
Either the RO or the Board must first determine whether the 
schedular rating criteria reasonably describe a veteran's 
disability level and symptomatology.  Id. at 115.  If the 
schedular rating criteria do reasonably describe a veteran's 
disability level and symptomatology, the assigned schedular 
evaluation is adequate, referral for extraschedular 
consideration is not required, and the analysis stops.

If the RO or the Board finds that the schedular evaluation 
does not contemplate a veteran's level of disability and 
symptomatology, then either the RO or the Board must 
determine whether a veteran's exceptional disability picture 
includes other related factors such as marked interference 
with employment and frequent periods of hospitalization.  Id. 
at116.  If this is the case, then the RO or the Board must 
refer the matter to the Under Secretary for Benefits or the 
Director of the Compensation and Pension Service for the 
third step of the analysis, determining whether justice 
requires assignment of an extraschedular rating.  Id.

In this case, the symptoms described by the Veteran fit 
squarely within the criteria found in the relevant Diagnostic 
Codes for the disability at issue.  In short, the rating 
criteria contemplate not only his symptoms but the severity 
of his disability.  For these reasons, referral for 
extraschedular consideration is not warranted.

Additionally, the Court recently held that a request for a 
total disability rating for compensation purposes based on 
individual unemployability due to service-connected 
disabilities (TDIU), whether expressly raised by the Veteran 
or reasonably raised by the record, is not a separate 'claim' 
for benefits, but rather, can be part of a claim for 
increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 
453-54 (2009).  In other words, if the claimant or the 
evidence of record reasonably raises the question of whether 
the Veteran is unemployable due to a disability for which an 
increased rating is sought, then part and parcel with the 
increased rating claim is the issue whether a TDIU is 
warranted as a result of that disability.  Id.

The Board has considered whether the claimant or the evidence 
of record reasonably raises the question of whether the 
Veteran is unemployable due to a disability for which an 
increased rating is currently sought in this appeal.  In the 
present case, the Board finds no such question is raised.  
The Veteran has not contended that he is unemployable due to 
the service-connected scar on appeal; the Veteran has in fact 
indicated to a VA examiner in October 2008 that his 
disability has not caused him to miss any time from his job.  
The Board finds that neither the evidence nor the contentions 
of record otherwise raise the question of whether the Veteran 
is unemployable due to a disability on appeal.  Therefore, 
the Board finds that this appeal does not include an issue of 
entitlement to TDIU.


ORDER

The appeal is denied.


____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs